TAX & TRANSACTIONS BULLETIN

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1 Volume 25 U.S. Families have accumulated significant wealth in their IRA accounts Family goals are to preserve this IRA wealth Specific Family goals for IRAs include: keep assets within the Family protect assets from creditors reduce income and estate taxes avoid probate and guardianship proceedings A Family should carefully plan its IRA beneficiary designation The beneficiary designation controls distribution of all IRA monies after the Account owner s death The beneficiary designation may be specially drafted to accomplish Family goals THE OPTIMAL BENEFICIARY DESIGNATION FOR THE FAMILY IRA AND 401(k) Many U.S. Families have accumulated significant wealth in their Individual Retirement Accounts and 401(k) Plans (collectively IRAs ). Family goals and objectives often focus on preserving this IRA wealth. Specifically, Family goals and objectives for IRA s include: (a) keep assets within the Family; (b) protect assets from creditors; (c) reduce income and estate taxes; and (d) avoid probate and guardianship proceedings. To accomplish these goals for IRA assets, a Family must carefully plan its IRA beneficiary designation. The beneficiary designation controls distribution of all IRA monies after the Account owner s death. With advance planning, a Family may design a beneficiary designation which accomplishes its goals. FALL 2010 A primary benefit of an IRA is that certain assets in the Account are exempt from bankruptcy creditors. 1 Another benefit of an IRA is that the Account owner may designate a Trust as beneficiary. Yet another benefit of an IRA is deferral of income tax until assets are distributed out of the IRA. Effective January 1, 2003, IRS issued 2 Final Regulations on the income taxation of Individual Retirement Accounts. 3 These Final Regulations allow Families additional opportunities to reduce both income tax and estate tax. With careful advance planning, the IRA owner may reduce tax on his Account and increase wealth for the Family. The Final Regulations provide a highly-favorable Life Expectancy Rule. Under this new Life Expectancy Rule, IRA cash distributions to each recipient are based on that recipient s remaining life expectancy. Unlike prior rules which required 1 For bankruptcies filed after October 17, 2005, federal law generally provides the following exemptions: (a) an unlimited exemption for qualified retirement plans; and (b) a $1 million exemption for traditional IRAs and Roth IRAs. IRA assets above the $1 million ceiling are included in the bankruptcy estate. The $1 million ceiling, however, does not apply to rollovers from qualified retirement plans or to simplified employee pension plans. Account owners may want to keep separate their regular and rollover IRAs, since a rollover IRA from a qualified plan should have an unlimited exemption from bankruptcy. (See The Bankruptcy Prevention and Consumer Protection Act of 2005, Pub. L. No , 11 U.S.C.A. Section 522). Additionally, Illinois law protects qualified retirement plans and IRAs from the claims of judgment creditors outside of bankruptcy. There is no ceiling on the Illinois protection from non-bankruptcy creditors, although there are exceptions for child support payments and other strong public policy matters (e.g. tax debts). See 735 ILCS 5\ The Final Regulations were published in the Federal Register on April 17, 2002, and apply for calendar years beginning on or after January 1, The Final Regulations apply to individual retirement accounts, 401(k) plans, and all other defined contribution plans which maintain an individual account for the owner. These retirement vehicles are collectively referred to as IRAs. Regulation 1.401(a)(9)-5 Q&A-1; Q&A-1. (The Final Regulations do not apply to defined benefit plans which pay an annuity to the owner).

2 PAGE 2 fast IRA payouts, the Life Expectancy Rule permits slower IRA payouts stretched over a longer period of time. Slow payouts reduce current tax liability and allow IRA principal to compound tax-free. The Life Expectancy Rule 4 thus favors growth of the IRA Account, which benefits the owner s entire Family. Typically an owner will contribute to his IRA Account during his working years. After the owner attains age 70½, the IRA must begin making cash distributions to him. 5 The IRA will continue to make these payouts annually during the owner s lifetime. After the owner s death, the IRA must make payouts to the beneficiary. Although IRA principal grows tax-free, each cash distribution is taxable to the recipient. Income tax planning for IRAs thus focuses on reducing the annual payout. By reducing the payout and retaining principal within the IRA, tax liability is deferred and the Account compounds tax-free. The following examples illustrate planning techniques for the IRA beneficiary designation. Example 1: Mom Elects to Treat Inherited IRA as Her Own. Assume Dad is age 70. Mom is 64. Child is 38. Grandchild is 2. Dad contributes to his IRA over much of his lifetime, and the Account grows to a value of $1 Million. In the year he attains age 70 ½, Dad must begin receiving cash distributions from his IRA. These mandatory cash payouts to Dad are favorably based on his remaining life expectancy. Dad designates Mom as primary beneficiary of his IRA. Dad s Revocable Trust is contingent beneficiary. When Dad later dies at age 72, Mom can rollover the IRA to her own IRA. There are at least four (4) major tax advantages to Mom s rollover strategy. First, the IRA will qualify for the marital deduction and will pass to Mom free of estate tax. Second, Mom is not required to take distributions from her own IRA until she attains age 70 ½. Since Mom is only 66, she can defer income taxes on the IRA for over 4 years. Third, when Mom does attain age 70 ½, she must begin receiving cash payouts. However, Mom s required annual payouts as IRA owner are smaller than if she were a beneficiary, permitting additional tax deferral. 6 Fourth, as owner Mom can designate new beneficiaries for the IRA. For instance, Mom can divide her IRA into two (2) equal $500,000 Accounts. The first Account names Child as beneficiary. The second Account names Grandchild as beneficiary. After Mom s death, each IRA pays out over the life expectancy of its respective beneficiary. 4 During the Account owner s lifetime, required distributions are made annually based on the longer of: (a) the joint life and last survivor expectancy of the owner and a hypothetical beneficiary ten (10) years younger; and (b) the joint life and last survivor expectancy of the owner and his spouse (in cases where the owner s sole designated beneficiary is his spouse and that spouse is more than ten (10) years younger than the owner). This distribution period is considerably longer than if based solely on the owner s remaining life expectancy. The Life Expectancy Rule thus permits slow IRA payouts over a long period of time. Regulation 1.401(a)(9)-5(A-4). After the Account owner s death, required distributions generally are made annually based on the remaining life expectancy of the beneficiary. Specifically, where the owner dies before his required beginning date, required distributions are made annually based on the remaining life expectancy of the beneficiary. Regulation 1.401(a)(9)-5 Q&A-5(c)(1); PLR Where the owner dies after his required beginning date, required distributions are made annually based on the longer of: (a) the life expectancy of the beneficiary; and (b) the life expectancy of the owner. Regulation 1.401(a)(9)-5 (A-5); PLR Thus, the owner can designate a Grandchild as beneficiary and stretch IRA payouts over an extended period. Again, the Life Expectancy Rule permits slow IRA payouts over a long period of time. 5 The IRA must make payouts due to the required minimum distribution rules. These rules require that payouts begin on the owner s first distribution calendar year, which is the year the owner attains age 70½. These payouts must continue to be made each year during the owner s lifetime. Although the owner may defer his first year s payout until April 1 of the calendar year following the calendar year in which he attains age 70½ (the owner s required beginning date ), this deferral will cause two payouts in that following year, possibly affecting the owner s tax bracket. Regulation 1.401(a)(9)-5(A-1(b)). 6 Required distributions to the owner are actuarially based on the joint life and last survivor expectancy of the owner and a hypothetical beneficiary ten (10) years younger. This distribution period is considerably longer than if based on solely the owner s remaining life expectancy. Contrarily, required distributions to the beneficiary are actuarially based on the beneficiary s remaining life expectancy (or the owner s life expectancy, if the owner was younger than the beneficiary). Regulations 1.401(a)(9)-5(A-4), and 1.401(a)(9)-5(A-5). [Stated differently, if Mom failed to rollover the IRA account, her payouts as a beneficiary would be larger and would accelerate income tax liability].

3 PAGE 3 Example 2: Spousal Fractional Disclaimer of Inherited IRA to Fund Credit Shelter Trust. Assume Dad is age 70. Mom is 64. Son is 38. Daughter is 32. Dad s IRA is worth $4 Million on Dad s death. Dad designated Mom as primary beneficiary of his IRA. Dad s Revocable Trust is contingent beneficiary. Dad s entire estate consists of his IRA. If Dad s IRA is distributed entirely to Mom, then Dad will fail to use his $2 Million estate tax credit. 7 Upon Mom s subsequent death, her estate may incur tax. To avoid this tax, Mom disclaims a fraction of the IRA. 8 The fraction equals $2 Million. The disclaimer 9 treats Mom as if she predeceased Dad. Therefore, a $2 Million IRA sub-account is distributed to Dad s Revocable Trust as contingent beneficiary. The Revocable Trust creates a credit shelter trust. 10 The $2 Million IRA sub-account is distributed to this credit shelter trust. 11 The $2 Million IRA sub-account will make cash payouts 12 to the credit shelter trust. 13 Upon Mom s later death, the $2 Million IRA sub-account is excluded from her taxable estate. 14 The family enjoys an estate tax savings of approximately $1 million. The credit shelter trust also provides non-tax benefits. First, IRA payouts remain in the trust. Since trust assets are generally protected from creditors, Son or Daughter will retain these assets following divorce, bankruptcy, or adverse judgment. Second, if Son dies the trust can provide that Son s share of the assets are paid to his children. A standard IRA form beneficiary designation, however, might provide that all IRA monies are paid to Daughter as surviving beneficiary. By designating a trust as beneficiary of an IRA, Dad ensures that IRA proceeds are distributed according to his intended estate plan. Third, if IRA proceeds were distributed to an estate, or to an individual who is either a minor or incompetent, probate and/or guardianship proceedings might be required. By using a trust as beneficiary, Dad may avoid the extra fees and delays associated with probate and guardianship. 7 Although the Federal Estate Credit is $3.5 million in 2009, the Illinois Estate Credit is only $2.0 million. Dad s Revocable Trust uses a formula which allocates $2 million to the Family Trust, and any balance to the Marital Trust. 8 See PLR See also PLR The disclaimer must qualify under Code Section See PLR The credit shelter trust is also known as the family trust. Its purpose is to receive assets equal to Dad s remaining estate tax credit upon his death. Assets in the family trust are outside of Mom s taxable estate, and thus avoid estate tax upon Mom s subsequent death. 11 Division of the IRA into sub-accounts is generally an income tax-free event. PLR ; Revenue Ruling These payouts would generally be made over the life expectancy of the eldest beneficiary of the credit shelter trust, pursuant to the required minimum distribution rules. PLR ; PLR Mom may consider also disclaiming her beneficial interest in the credit shelter trust, which could permit IRA distributions to be paid over the life expectancy of Son. Since Son is considerably younger, annual IRA distributions would be much smaller resulting in income tax savings. 13 The credit shelter trust can then distribute to its beneficiaries the IRA proceeds. 14 In PLR Dad executed a Beneficiary Designation Form for his IRA naming Mom as primary beneficiary, and Dad s Revocable Trust as contingent beneficiary. Upon Dad s death, his Revocable Trust divides into a Marital Trust and a Family Trust. Mom disclaimed a fraction of IRA. The disclaimed portion of IRA passed to the Revocable Trust as contingent beneficiary. The disclaimed portion of IRA is segregated into a separate IRA ( Disclaimed IRA ) with Revocable Trust as beneficiary. The Revocable Trust s beneficial interest in Disclaimed IRA is distributed to the Family Trust. PLR confirmed all of the following: (1) A partial disclaimer of an IRA is a qualified disclaimer under Code Section 2518; further, as a result of the disclaimer, Revocable Trust will become the beneficiary of Disclaimed IRA, and that beneficial interest will pass to Family Trust under the terms of Revocable Trust; Mom is a beneficiary and a Trustee of Family Trust; (2) Upon Mom s subsequent death, the Disclaimed IRA with respect to which the Family Trust is beneficiary will not be included in Mom s gross estate; (3) Section 401(a)(9) required minimum distributions from Disclaimed IRA can be made to Family Trust over Mom s remaining, recalculated, life expectancy; and (4) Regarding the portion of IRA which Mom does not disclaim, and which therefore remains payable to Mom, Mom may rollover this Non-disclaimed IRA into an IRA in Mom s own name and effectively Mom has elected to treat this transferred portion as Mom s own IRA which qualifies as a tax-free transfer pursuant to Code Section 408(d)(3)(A); furthermore, Mom can designate her children as beneficiaries of her resultant transferee IRA, and she need not commence Section 401(a)(9) required minimum distributions from her transferee IRA until April 1 following the year in which she attains age 70 ½, and Mom may receive required minimum distributions from her transferee IRA over her life expectancy. See also PLR which held that where Dad s IRA was payable to a Residuary Trust (under Dad s Revocable Trust), the division of the Residuary Trust into separate trusts (a QTIP Trust, and a Non-QTIP Trust, respectively) based on a fractional marital formula will not constitute a distribution that is in satisfaction of a right to receive a distribution of a specific dollar amount, and therefore, under regulation 1.661(a)-2(f)(1), no gain or loss will be realized by the Residuary Trust.

4 PAGE 4 Example 3: Unmarried Person Maximum Income Tax Savings Strategy. Assume Mom is age 64 and unmarried. Son is 38. Grandchild is 8. Mom s IRA is worth $1 Million on her death. Mom designates Son and Grandchild as equal (½) primary beneficiaries of her IRA. 15 Following Mom s death, Grandchild can establish a separate $500,000 IRA in Mom s name f/b/o Grandchild. Grandchild s separate IRA would pay out over his own life expectancy. 16 Since Grandchild is only 8 years old when Mom dies, Grandchild s IRA will pay him cash each year for the next 75 years. Effectively, Mom has created a lifetime annuity for Grandchild. There are several drawbacks to Mom s strategy of naming Son and Grandchild as outright beneficiaries. First, as beneficiary Grandchild may have the right to withdraw all funds from his IRA. 17 Second, if either Son or Grandchild dies, the IRA Custodian s standard form beneficiary designation may dictate who receives the deceased person s IRA. Mom s estate plan may be frustrated if she intended a different result. Third, the IRA s required distributions are made outright to Son and Grandchild, so there is no creditor protection for these dollars. Fourth, Grandchild is a minor, so that probate and/or guardianship proceedings may be required. Mom may use Trusts to eliminate these drawbacks. Trusts generally ensure that beneficiaries may withdraw funds only upon attaining prescribed ages, that Mom s intended distribution pattern is respected, that inherited dollars receive protection from creditors, and that probate and/or guardianship will be avoided. In short, designating a Trust as IRA beneficiary often helps accomplish Family goals and objectives. 18 Example 4: Unmarried Person Designates her own Revocable Trust as Primary Beneficiary of her IRA. 19 Assume Mom is age 64. Mom has established her Revocable Trust for the benefit of her three (3) Children. The Revocable Trust provides that upon Mom s death, the Trustee shall divide the Trust assets into equal shares for each of the three (3) Children. Each share shall constitute a separate Trust for each respective Child, and each share shall be held and administered as a separate Trust. Mom signs a Beneficiary Designation Form naming her Revocable Trust as primary beneficiary of her IRA Account. After Mom s death, her IRA was subdivided into three (3) equal IRAs. Each posthumously created IRA is titled in Mom s name (Deceased) for the benefit of a distinct Sub-Trust. 20 Thus, the first posthumous IRA is titled Mother (Deceased) for the benefit of the Trust for Child # 1. The second posthumous IRA is titled Mother (Deceased) for the benefit of the Trust for Child # 2. The third posthumous IRA is titled Mother (Deceased) for the benefit of the Trust for Child # 3. Generally only individuals may be designated beneficiaries for purposes of Section 401(a)(9). 21 A person who is not an individual, such as the employee's Estate or a Charitable Organization, may not be a designated beneficiary. If a person other than an individual is designated as a beneficiary of an employee's benefit, the employee will be treated as having no beneficiary for purposes of section 401(a)(9), even if there are also individuals designated as beneficiaries Mom may prefer to divide her IRA into two (2) equal accounts while she is living. 16 PLR Under most IRA Custodian Agreements, the owner has the right to withdraw all monies from the IRA during his lifetime. After the owner s death, the beneficiary has the right to withdraw all monies from the IRA. 18 For income tax purposes, however, it may be difficult to have Grandchild s IRA pay out to a Trust for Grandchild over his favorable life expectancy. The IRS has not yet fully endorsed such a technique. See PLR ; Regulation 1.401(a)(9)-5 Q&A 7(b),(c). 19 See PLR (04/25/2003). 20 See PLR (04/25/2003). 21 Section 1.401(a)(9)-4 of the Regulations, Q&A PLR (5/28/2010).

5 PAGE 5 However, the beneficiaries of a Trust with respect to the Trust's interest in an employee's benefit may be treated as designated beneficiaries if the following four (4) requirements are satisfied (the Look Thru Rules): (1) The trust is valid under state law or would be but for the fact that there is no corpus; 23 (2) The trust is irrevocable or the trust contains language to the effect it becomes irrevocable upon the death of the employee; (3) The beneficiaries 24 of the trust who are beneficiaries with respect to the trust's interest in the employee's benefit are identifiable within the meaning of A-1 of this section from the trust instrument; 25 and (4) Certain documentation described in A-6 of this section (relating to the Original Trust Agreement and all Amendments) is provided by the trustee of the trust/beneficiary to the plan administrator by October 31 of the calendar year following the calendar year in which the employee died. 26 In short, pursuant to the Look Thru Rules above, the beneficiaries of a Trust with respect to the Trust's interest in an employee's benefit may be treated as designated beneficiaries if certain requirements are met. 27 There is another set of rules for defined contribution plans known as the Separate Account Rules. 28 A separate account is an account under which the beneficiary or beneficiaries differ from the beneficiary or beneficiaries of the other accounts. 29 The separate account rules are not available to beneficiaries of a Trust with respect to the Trust's interest in the employee's benefit. 30 Therefore, if distributions are made to a Trust, even if the Trust is a see-through Trust, the separate account rules are not available to the beneficiaries of the Trust. Thus, in general, each beneficiary of a Trust must receive minimum required distributions over the life expectancy of the eldest beneficiary; 31 and this general rule applies where IRA distributions are made directly to a Subtrust created under the terms of a Trust Q&A-5 of 1.401(a)(9)-4. A Trust which satisfies these requirements is known as a See Through Trust or a Look Through Trust. Note: If a Charitable Organization is a current or contingent beneficiary of the Trust, then the Trust provisions will be ineffective to allow IRS to look thru the Trust to determine a designated beneficiary, and the IRA will be distributed as though it has no designated beneficiary [PLR (post-mortem state court order removing the Charitable Organization as a contingent beneficiary is not given effect for federal tax purposes, and Taxpayer-decedent is treated as having designated no beneficiary under Code Section 401(a) (9))]. 24 If a beneficiary's entitlement to an employee's benefit after the employee's death is a contingent right, such contingent beneficiary is nevertheless considered to be a beneficiary for purposes of determining whether a person other than an individual is designated as a beneficiary (resulting in the employee being treated as having no designated beneficiary) and which designated beneficiary has the shortest life expectancy. Section 1.401(a)(9)-5 of the Regulations, Q&A-7(b). 25 In PLR , a Trust was the beneficiary of the decedent's interest in two qualified plans. The Trust authorized the payment of the decedent's taxes, administrative and funeral expenses from Trust assets, and plan assets were in fact used to pay those taxes and expenses. In considering which Trust beneficiaries must be considered in determining the designated beneficiary of the qualified plans, the IRS ruled that creditors of the trust were not considered potential beneficiaries for purposes of 401(a)(9). Thus, plan distributions could be made to the trust over the life expectancy of the oldest of the trust beneficiaries (a)(9)-4 of the Final regulations, Q&A-6(b). PLR (04/25/2003); PLR (5/28/2010). 27 See PLR (04/25/2003) (a)(9)-8 of the Final Regulations, Q&A-2(a). 29 In general, if separate accounts are set up, for years subsequent to the calendar year containing the date on which the separate accounts were established, or the date of death if later, a separate account under a plan is not aggregated with the other separate accounts under the plan in order to determine whether the distributions from such separate account satisfy the requirements of Code 401 (a)(9). Instead, the rules in Code 401(a)(9) apply separately to each separate account under the plan. 30 See 1.401(a)(9)-4 of the Final Regulations, Q&A-5(c); A-2 of 1.401(a)(9) See PLR (04/25/2003). 32 See PLR (04/25/2003).

6 PAGE 6 In summary, IRS Regulations preclude separate account treatment for Code Section 401(a)(9) purposes where amounts pass through a Trust. Similarly, IRS Regulations preclude separate account treatment for Code Section 401(a)(9) purposes where amounts pass through a Subtrust created under a Trust. 33 Thus, even though an IRA has been posthumously divided into three IRAs, and each posthumous IRA is payable to a separate Subtrust created under a Trust, the life expectancy of the eldest beneficiary of all of the IRAs is the life expectancy to be used to determine the Code Section 401(a)(9) payout period for distributions from all of the IRAs. 34 Planning Note: In order to obtain maximum income tax deferral and satisfy the Separate Account rules, the IRA owner should divide her IRA into separate IRAs during her lifetime. The IRA owner during her lifetime can also establish separate Irrevocable Trusts for each individual beneficiary. Each separate IRA would be payable to a separate Irrevocable Trust, pursuant to the beneficiary designation form. Thus, Mom during her lifetime would establish a separate Irrevocable Trust for Child #1; a separate Irrevocable Trust for Child #2; and a separate Irrevocable Trust for Child #3. Mom would then divide here IRA into three (3) separate IRAs. Mom would then execute beneficiary designation forms as follows: IRA #1 would be payable to Irrevocable Trust #1 f/b/o Child #1; IRA #2 would be payable to Irrevocable Trust #2 f/b/o Child #2; and IRA #3 would be payable to Irrevocable Trust #3 f/b/o Child #3. This strategy should allow Mom to obtain maximum income tax deferral and satisfy the Separate Account rules. Example 5: Dad Designates QTIP Marital Trust for 2nd Wife as Beneficiary of his IRA. Assume Dad is age 70. Dad has children from prior marriage to 1st Wife who is deceased. Dad is currently married to 2nd Wife with whom he has no children. Dad s IRA is worth $3 Million. Dad wants to provide income for 2nd Wife during her lifetime. Upon 2nd Wife s death, Dad wants the principal to be distributed to his children. Dad does not want 2nd Wife to consume the principal. Dad wants to minimize income and estate tax. Therefore, Dad s Revocable Trust creates a QTIP Marital Trust ( QTIP Trust ) for 2nd Wife. 35 The QTIP Trust satisfies all of the following requirements: Dad executes a beneficiary designation naming the QTIP Marital Trust as beneficiary of his IRA nd Wife has the right (directly or through the trustee of Trust) to compel the investment of the IRA in assets productive of a reasonable income; 33 See PLR (04/25/2003). 34 See PLR (04/25/2003). Planning Note: In order to obtain maximum income tax deferral and satisfy the Separate Account rules, the IRA owner should divide her IRA into separate IRAs during her lifetime. The IRA owner during her lifetime can also establish separate Irrevocable Trusts for each individual beneficiary. Each separate IRA would be payable to a separate Irrevocable Trust, pursuant to the beneficiary designation form. 35 Dad s Revocable Trust also creates a Family Trust for 2 nd Wife and his children. Dad s Family Trust will be funded with Dad s additional assets equal to his Tax Credit of $2 Million. These additional assets are allocated to the Family Trust because they are rapidly appreciating, and Dad wants to eliminate all estate tax on them at both his and 2 nd Wife s death. Contrarily, the IRA is allocated to the Marital Trust because it will not rapidly appreciate (due to the requirement to pay minimum distributions annually, which increases the tax/compliance/ administration costs), and therefore the estate tax on the IRA which is merely deferred until 2 nd Wife s death will be comparatively less than if the rapidly appreciating assets were allocated to the Marital Trust. Furthermore, since IRA will not rapidly appreciate, and since 2 nd Wife s estate tax credit will apply on her subsequent death, the estate tax on the IRA may be reduced or even eliminated. [Note: the allocation of assets to the Family Trust and Marital Trust, respectively, is case specific and depends on many factors.] 36 By satisfying each requirement, the IRA qualifies for the marital deduction under Code Section 2056(b)(7), which defers estate tax until the death of 2 nd Wife. Furthermore, 2 nd Wife s Tax Credit will apply on her subsequent death, meaning that the estate tax on the IRA may be reduced or even eliminated. See Revenue Ruling These same principles which apply to an IRA also apply to naming the QTIP Trust as beneficiary of Dad s interest in some other qualified retirement plan described in Code Section 4974(c) that is a defined contribution plan. See Revenue Ruling

7 PAGE 7 3. The QTIP Trust requires the trustee annually to withdraw all income from the IRA and to distribute to 2nd Wife at least that income; The IRA document does not prohibit withdrawal from the IRA of amounts in excess of the annual required minimum distribution amount under Code Section 408(a)(6); 5. Under QTIP Trust s terms, all income is payable annually to 2nd Wife for her lifetime; Under QTIP Trust s terms, no person has the power to appoint any part of Trust principal to any person other than 2nd Wife during her lifetime; 7. 2nd Wife has the right to compel the trustee to invest the (non-ira) Trust principal in assets productive of a reasonable income; 8. On 2nd Wife s death, Trust principal is to be distributed to Dad s children, who are younger than 2nd Wife; 9. Under the Trust Agreement, no person other than 2nd Wife and Dad s children has a beneficial interest in Trust (including any contingent beneficial interest); 10. The trustee of QTIP Trust elects to receive annual required minimum distributions over a distribution period equal to 2nd Wife s life expectancy; 40 and 11. The executor of Dad s estate files a QTIP Election to treat both the IRA and Trust as QTIP. 41 This strategy permits Dad to accomplish the following goals and objectives: (1) Dad provides income from IRA for 2nd Wife during her lifetime; (2) upon 2nd Wife s death, all principal of IRA is allocated to Dad s children; (3) 2nd Wife cannot consume IRA principal; (4) Dad minimizes income tax by paying IRA distributions over 2nd Wife s life expectancy; and (5) Dad minimizes estate tax by carefully allocating assets to his QTIP Marital Trust and Family Trust, respectively. 38 Alternatively, 2 nd Wife may be granted the power, exercisable annually, to compel the trustee to withdraw from the IRA an amount equal to all income of the IRA for the year and to distribute that income to her. 39 The income of the IRA, and the income of Trust excluding the IRA, are determined separately and without taking into account that the IRA distribution is made to Trust. In order to avoid any duplication in determining the total income to be paid to 2 nd Wife, the portion of the IRA distribution to Trust that is allocated to trust income is disregarded in determining the amount of trust income that must be distributed to 2 nd Wife. See Revenue Ruling Based on the Single Life Table in A-1 of Reg (a)(9)-9, using 2 nd Wife s age as of her birthday in the year immediately following Dad s death, reduced by one for each calendar year that elapses after such year. On 2 nd Wife s death, the required minimum distributions with respect to any undistributed balance of the IRA will continue to be calculated in the same manner and be distributed to Trust over the remaining distribution period. [Note: both 2 nd Wife, and Dad s children as remainder beneficiaries, must be taken into account as designated beneficiaries in order to determine the shortest life expectancy and whether solely individuals are designated beneficiaries. If an entity (e.g. a Charitable Organization or an Estate) is a current or a contingent beneficiary, then the required distributions may be accelerated.] 41 Dad s executor must make a QTIP Election for both the IRA and the Marital Trust. See Revenue Ruling Lyon & Caron LLP is a law firm specializing in Corporate and Securities Transactions, Real Estate, and Taxation and Estate Planning. All information provided in this document is generalized. Readers should not act on the information or Articles provided in this document without first obtaining expert advice from a Professional tax and business advisor Lyon & Caron LLP Written by William B. Fox, B.A., J.D., LL.M. Tax